FEDERAL COURT OF AUSTRALIA SZDWX v Minister for Immigration and Citizenship [2007] FCA 105 MIGRATION – No point of principle Migration Act ss 66(1), 66(2) SZDWX v Minister for Immigration and Multicultural Affairs [2005] FMCA 1015 SZDWX v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 1632 SZDWX v Minister for Immigration and Multicultural Affairs [2006] FMCA 1423 Twist v Randwick Municipal Council (1976) 136 CLR 106 SZDWX v MINISTER FOR IMMIGRATION AND CITIZENSHIP 1911 OF 2006 TRACEY J 16 FEBRUARY 2007 SYDNEY IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY 1911 OF 2006 ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA BETWEEN: SZDWX Applicant AND: MINISTER FOR IMMIGRATION AND CITIZENSHIP Respondent JUDGE: TRACEY J DATE OF ORDER: 16 FEBRUARY 2007 WHERE MADE: SYDNEY THE COURT ORDERS THAT: 1. The appeal be dismissed with costs. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules. IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY 1911 OF 2006 ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA BETWEEN: SZDWX Applicant AND: MINISTER FOR IMMIGRATION AND CITIZENSHIP Respondent JUDGE: TRACEY J DATE: 16 FEBRUARY 2007 PLACE: SYDNEY REASONS FOR JUDGMENT 1 The applicant is a citizen of India. He entered Australia in November 2003 and made application for a protection visa the following month. He claimed to be a Muslim and a vice president of the United Religion Social Association. He said that he had attended a rally with other members of the organisation and had been attacked by police and threatened with arrest. A delegate of the Minister refused the application and the applicant appealed to the Refugee Review Tribunal ("the Tribunal"). 2 The Tribunal affirmed the delegate's decision. It did not accept the factual assertions made by the applicant. The applicant was found not to be a credible witness because of material inconsistencies in his evidence. The Tribunal found that the claims of the applicant in relation to his religion and his political opinion were not made out. 3 The applicant sought judicial review of the Tribunal's decision in the Federal Magistrates' Court. The application was dismissed: see SZDWX v Minister for Immigration and Multicultural Affairs [2005] FMCA 1015. An appeal to this Court from the Federal Magistrates' Court was dismissed by Gyles J on 10 November 2005: see [2005] FCA 1632. The applicant thereupon commenced further proceedings in the Federal Magistrates' Court, this time seeking review of the decision of the Minister's delegate which had earlier been the subject of appeal to the Tribunal. 4 In his second application to the Federal Magistrates' Court the applicant complained that the delegate's decision involved a breach of natural justice, that the delegate did not have jurisdiction to make the decision which had been made because the requirements of ss 66(1), 66(2) of the Act had not been observed; and that the decision was an improper exercise of power. None of these grounds was particularised. The applicant acknowledged that the proceeding had been commenced out of time but asserted that it was not vexatious or an abuse of process and that it was capable of being reviewed by the Court. 5 The respondent filed an application in the proceeding under r 13 of the Federal Magistrates' Court Rules 2001 (Cth) ("the Rules") seeking summary dismissal of the application on various grounds. They included the contention that the proceedings were vexatious and/or an abuse of process and that the application had been brought out of time with the result that, pursuant to s 477(1) of the Act, the Court lacked jurisdiction to entertain the application. 6 On 13 September 2006 a Federal Magistrate made orders that the application be dismissed with costs. Her Honour also made orders adding the Tribunal as a second respondent. This latter order does not appear to have been appropriate given that the applicant was seeking to impugn a decision of a delegate of the Minister. On the same day her Honour published reasons for her decision: see SZDWX v Minister for Immigration and Multicultural Affairs [2006] FMCA 1423. 7 On 28 September 2006 the applicant filed an application for leave to appeal from the Federal Magistrate's decision in this Court. The application was called on for hearing before me on 12 February 2007. The applicant appeared in person and had the assistance of an interpreter. He said that he had received some advice from a friend who had helped him prepare the application. The friend was, apparently, under the impression that the Federal Magistrate had dismissed the application summarily and that leave was, therefore, required before an appeal could proceed. 8 Counsel for the Minister advised the Court that the Minister considered that the Federal Magistrate had dismissed the application on the ground that, even if the delegate had, in some way, erred in law, any such error had been "cured" by the subsequent hearing before the Tribunal: see Twist v Randwick Municipal Council (1976) 136 CLR 106. 9 An examination of her Honour's reasons left me in some doubt as to the basis on which she had determined to dismiss the application. At one point she said (at [16]) that "it would be entirely inappropriate to consider relief of the Delegate's decision." However, later (at [18]) she referred to the Minister's "motion that was dismissed" thereby suggesting that she had not dismissed the application on a summary basis. 10 After the matter had been raised by the Minister's counsel and the implications were explained to the applicant he nonetheless asked the Court to proceed to determine his application for leave to appeal. The Minister's notice of motion was not available to the Court; nor did counsel for the Minister (who did not appear before the Federal Magistrates' Court) have instructions as to what relevant procedural steps had been taken in that Court. 11 In the circumstances I invited counsel for the Minister to seek to obtain a copy of the Minister's notice of motion, and, if possible, to obtain a short affidavit from the representative of the Minister in the Federal Magistrates' Court explaining what had transpired. I asked that copies of the notice of motion and any affidavit should be provided to the applicant prior to an adjourned hearing on 14 February 2007. 12 When the matter was called on on 14 February 2007 the applicant did not appear. Counsel for the Minister filed in Court a short affidavit from a solicitor who had acted for the Minister when the proceeding was before the Federal Magistrates' Court. That affidavit disclosed that the Minister's notice of motion had been dismissed on 15 December 2005 and that the Federal Magistrate had then set the matter down for a final hearing on 13 September 2006. At that final hearing the application had been dismissed. 13 I further adjourned the hearing until 16 February 2007. I asked that steps be taken to advise the applicant of the adjourned hearing date and that, on that date, I proposed to hear any further argument which the applicant may wish to advance in the light of the material contained in the affidavit and then to proceed to determine the application. 14 The applicant attended the adjourned hearing on 16 February 2007. He said that he did not wish to add to the submissions which he had already made. 15 It is now clear, in my view, that the learned Federal Magistrate dismissed the applicant's application for judicial review of the delegate's decision on a final basis. I have carefully read her Honour's reasons for decision and can discern no appealable error. Indeed, I consider that she was correct in coming to the view that, once the applicant had exercised his appeal rights and been accorded a full rehearing on the merits before the Tribunal, any error (assuming that there was one) made by the delegate, did not and could not have any material bearing on the operative and prejudicial decision of the Tribunal which was later made and unsuccessfully challenged by the applicant. 16 The application should be treated as an appeal from the decision of the Federal Magistrates' Court and that appeal should be dismissed with costs. I certify that the preceding sixteen (16) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Court. Associate: Dated: 16 February 2007 Counsel for the Appellant: Applicant appeared in person Counsel for the Respondent: Ms S Burnett Solicitor for the Respondent: Clayton Utz Date of Hearing: 16 February 2007 Date of Judgment: 16 February 2007